IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30205

CARLWYNN J. TURNER, 

 Plaintiff - Appellant

v.

N. BURL CAIN; DARREL VANNOY; LESLIE DUPONT, 

 Defendants - Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:12-CV-598

Before JONES, WIENER, and HIGGINSON, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

In 2012, Plaintiff-Appellant Carlwynn J. Turner, a prisoner at the 

Louisiana Department of Corrections (“LDOC”), brought this pro se civil rights

action against Defendant-Appellees N. Burl Cain, warden of the Louisiana 

State Penitentiary (hereinafter “LSP” and colloquially “Angola”), as well as his 

subordinates, David Vannoy, a deputy warden, and Leslie Dupont, an 

assistant warden. Turner alleged that Warden Cain, Vannoy, and Dupont 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 28, 2016

Lyle W. Cayce

Clerk

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transferred him from the LSP after he exercised his First Amendment right of

free speech. This case involves a novel prisoner free speech claim that is 

inadequately discussed in the district court. We affirm in part, reverse in part, 

and remand.

I.

Facts & Proceedings

The events giving rise to Turner’s claim began on April 16, 2011, while 

he was selling crafts to members of the public attending the Angola Prison 

Rodeo. As several potential buyers negotiated with Turner, he told them that 

it would be impracticable for him to accept the prices they were offering. 

Specifically, he remarked that Warden Cain imposed “taxes” on each item he 

sold. Turner describes the exchange as follows:

[H]e explained to the people standing around his 

hobby craft booth that he could not reduce his hobby 

craft prices because Warden Cain takes 18% . . . from 

individual cash sales . . . and 22% . . . from individual 

credit card sales. [He] shared this information with 

the public because it affected his hobby craft business. 

The times he sold and how he sold them determined 

the worth and profit of his business. It either caused 

him to make a profit or loose [sic] a profit. To reduce 

his prices would subject him to more of a profit lost 

than a profit gain. Mainly because of what it cost to 

make a product, and the percentage that is taken from 

the sale of it. He explained his prices and position to 

settle the mind of the customer, and he wanted to 

make it clear that he was not being mean, he was just 

doing business in the free market.

Such taxes were, in fact, imposed by Warden Cain.1

 

1 According to Warden Cain himself, “taxes were raised for the following 

reasons: . . . 11% tax is used to rebuild, maintain, or add new [hobby craft facilities,] . . . 9% 

[Feliciana] Parish tax . . . , 2-3% taxes [sic] were charged by [c]redit [c]ard [c]ompanies . . . .” 

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Turner alleges that Dupont’s wife overheard Turner’s remarks about the 

taxes and repeated them to Dupont. He further alleges that, later that day,

Dupont removed Turner from the Rodeo grounds, telling Turner that “his 

wife . . . informed him that [Turner] was telling the people about the inmates 

being taxed a percentage from the sale of their hobby craft,” and that, “in anger, 

[Dupont] vehemently” prohibited Turner from returning to the Rodeo grounds 

to sell crafts.

Turner also alleges that he “was never informed by . . . Cain during the 

‘[R]odeo prep meetings’ that inmates were not allowed to talk about the tax 

percentages with the public” and that “there w[ere] no written policies or 

posted memorandums that informed inmates [who] sold hobby craft [that] they 

could not tell potential customers about the 18% and 22% tax inmates pay upon 

the sale of their hobby craft.” In other words, he alleges that he “had no 

knowledge that if he shared the tax information with [members of the] public 

he would be punished for doing so.” There is nothing in the record that suggests

any restrictions on his speech existed.

Turner then alleges that Dupont did not even “write a disciplinary 

report . . . charging [Turner] with any rule violations.” Despite the absence of 

any prior restraint on his speech, he was added to a list of 15-or-so “Inmates 

That [H]ad Rodeo Violations.” The list indicated that he had “Bribe[d] the 

Public”2 (and that most of the others had “G[iven] Interview[s] To Media” or 

“Failed Drug Test[s]”).

 

The parties do not seem to dispute that these taxes were levied against the seller, not the 

buyer. 

2 Although prison regulations presumably prohibit such conduct, neither party asserts 

that is what actually took place.

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Turner also alleges that, two days after he was removed from the Rodeo,

Dupont met with Warden Cain about each of the violations that had occurred

during the Rodeo and that, ten days after that, Warden Cain had transferred 

Turner and most, if not all, of the other prisoners on Dupont’s list from LSP to 

other LDOC facilities. Turner avers that, as they were being transferred, 

Vannoy “met with [them at the gate] and said that . . . Warden Cain don’t want 

to talk to any of you[;] he is angry and displeased with your behavior during 

the [R]odeo because you did whatever it was you did, he has decided to transfer 

you.” Turner was transferred to Hunt Correctional Center, where he spent 

approximately 59 days, before being transferred again, this time to David 

Wade Correctional Center.

Turner brought this action, asserting claims against Warden Cain, 

Dupont, and Vannoy in their official and individual capacities. He alleges

specifically that they violated his First Amendment rights by retaliating 

against him for exercising his right to free speech at the Rodeo. Turner next 

alleges that, as a result of that retaliation, he (1) suffered a number of 

hardships as a result of the transfers, (2) lost his lucrative job, (3) was 

separated from some of his belongings, and (4) remains isolated from his 

friends and family. He seeks compensatory and punitive damages.

Warden Cain, Vannoy, and Dupont moved to dismiss the claims under 

Fed. R. Civ. P. 12(b), asserting that Turner had failed to state a claim and that 

they were entitled to Eleventh Amendment immunity and qualified immunity. 

The magistrate judge recommended that the district court dismiss the claims 

except for that against Warden Cain in his individual capacity. The district 

court adopted the magistrate judge’s recommendations over Turner’s 

objections. The action proceeded and, in due course, Turner and Warden Cain

each moved for summary judgment under Fed. R. Civ. P. 56. The magistrate 

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judge recommended that the district court dismiss Turner’s remaining claim, 

again over Turner’s objections. Turner has timely appealed.3

II.

DISCUSSION

On appeal, Turner challenges both the dismissal and the adverse 

summary judgment. He alleges that the LSP officials retaliated against him 

for his discourse with members of the public.4 “To prevail on a claim of 

retaliation, a prisoner must establish (1) a specific constitutional right, (2) the 

[prison official’s] intent to retaliate against the prisoner for his or her exercise 

of that right, (3) a retaliatory adverse act, and (4) causation.”5 The “retaliatory 

adverse act” must be “more than de minimis retaliation.”6

A. Motion to Dismiss

Turner alleges that Dupont and Vannoy retaliated against him for his 

remarks regarding the taxes imposed by Warden Cain. We review de novo an 

order granting a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).7 “To 

survive a motion to dismiss, a complaint must contain sufficient factual matter, 

 

3 This court granted Turner leave to proceed in forma pauperis and ordered the parties 

to submit briefs. Neither Dupont nor Vannoy filed appellee briefs, but this does not affect 

their interests, only their ability to participate in oral argument. Fed R. App. P. 31(c).

4 The district court correctly construed Turner’s complaint as containing both official 

capacity and individual capacity claims against the defendants and dismissed each of the 

official capacity claims under Rule 12(b). Because Turner now suggests that he only intended 

to bring individual capacity claims against them, he has waived any challenge to the district 

court’s disposition of his official capacity claims.

5 Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006) (quoting McDonald v. Steward, 

132 F.3d 225, 231 (5th Cir. 1998)).

6 Id. at 684–85.

7 Lampton v. Diaz, 639 F.3d 223, 225 (5th Cir. 2011).

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accepted as true, ‘to state a claim to relief that is plausible on its face.’”8 We 

consider the complaint “in the light most favorable to the nonmoving party,” 

because motions to dismiss under Rule 12(b)(6) are “‘viewed with disfavor and 

[are] rarely granted.’”9

The district court adopted the magistrate judge’s determination that the 

retaliatory act was the transfer itself. If properly alleged, such an act exceeds 

the de minimus threshold because, even though a prisoner has no 

constitutional right to be housed in a particular institution,10 an otherwise 

permissible act may nonetheless violate the constitutional rights of a prisoner 

if ordered in retaliation for the exercise of those rights.11 Turner alleges that 

Dupont was involved with or caused the transfer by telling Warden Cain about 

Turner’s remarks and that Vannoy was involved with or caused the transfer 

because he told Turner and the other prisoners that the transfer was 

retaliatory. But what Turner alleges, taken as true, does not establish this. 

He merely alleges that Dupont provided the information on which Warden 

Cain made his decision and that Vannoy was aware of that decision. From 

Turner’s allegations, it appears that the decision to transfer him was Warden 

Cain’s alone. Accordingly, the district court did not err in determining that 

Turner had not stated a claim of retaliation against Dupont and Vannoy for 

the transfer itself. 

 

8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 547 (2007)).

9 Leal v. McHugh, 731 F.3d 405, 410 (5th Cir. 2013) (quoting Turner v. Pleasant, 

663 F.3d 770, 775 (5th Cir. 2011)).

10 Meachum v. Fano, 427 U.S. 215, 225 (1976).

11 See Morris, 449 F.3d at 685–87.

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However, Turner sufficiently alleges that DuPont was involved in his 

removal from the Rodeo grounds, which constituted a retaliatory act for his 

“speech” about Warden Cain’s taxes. He makes this clear both in his complaint 

and in in his objections to the magistrate judge’s recommendation that the 

district court grant the LSP officials’ motion to dismiss. As Turner is 

proceeding pro se, the complaint and objections are “to be liberally 

construed.”12 Further, the act of removing Turner from the Rodeo grounds 

meets the de minimus threshold.13 This was not a mere reassignment of prison 

jobs. It was the denial of Turner’s opportunity to sell his crafts, to profit from 

those sales, and to interact with members of the public.14 It also disrupted his 

longstanding record of good behavior at the LSP. Turner also alleges that he 

would not have mentioned the taxes if he had known that doing so would result 

in his removal from the Rodeo grounds. 

It is also apparent from Turner’s allegations that the restriction on his 

speech—if made known to him in advance—would have deterred a person of 

ordinary firmness from speaking. Consequently, the district court erred in 

dismissing Turner’s claim of retaliation against Dupont for the removal. 

B. Motion for Summary Judgment

We review de novo an order granting a motion for summary judgment 

pursuant to Rule 56. “Summary judgment is appropriate if the record 

demonstrates ‘that there is no genuine dispute as to any material fact and that 

 

12 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted).

13 Morris, 449 F.3d at 687.

14 An article about the Rodeo in Corrections Today explains: “[H]obby shop privileges 

are highly valued at the prison, which hosts annual events featuring the selling of inmate 

arts and crafts. These events have been hugely successful and inmate hobby crafters can 

make significant amounts of revenue from their participation.” Cathy Fontenot, Managing 

Angola’s Long-Term Inmates, CORRECTIONS TODAY 119 (Aug. 2001).

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the movant is entitled to judgment as a matter of law.’”15 “A genuine issue of 

material fact exists if the record, taken as a whole, could lead a rational trier 

of fact to find for the non-moving party.”16 “When considering a motion for 

summary judgment, [we] construe the evidence and draw all reasonable 

inferences in the light most favorable to the non-moving party.”17

The district court determined that there was no genuine issue of material 

fact because Turner had failed to establish that he was exercising or 

attempting to exercise a specific constitutional right when he commented on 

the taxes. The district court characterized Turner’s remarks as a grievance

directed at LSP officials. It explained, based on our opinion in Freeman v. 

Texas Dep’t of Criminal Justice,18 that Turner, as a prisoner, retained a right 

of free speech only to the extent he exercised that right in a manner consistent 

with his status as a prisoner. Because Turner had not raised the “grievance”

in these administrative channels, his speech was not protected.19

Critical to this determination are (a) whether Turner’s speech was 

protected and (b) whether the LSP officials could restrict it. Warden Cain

suggests that Turner had “no rights [sic] to participate in [the] Rodeo simply 

because it is a privilege afforded to him and not a Constitutional right.” This 

misses the point. Turner does not contend that he had a right to participate in 

 

15 Fed. R. Civ. P. 56(a).

16 Harris v. Serpas, 745 F.3d 767, 771 (5th Cir. 2014) (quoting Tubos de Acero de 

Mexico, S.A. v. Am. Int’l Inv. Corp., Inc., 292 F.3d 471, 478 (5th Cir. 2002)), cert. denied, 

135 S. Ct. 137 (2014).

17 See Kitchen v. Dallas Cty., Tex., 759 F.3d 468, 476 (5th Cir. 2014).

18 369 F.3d 854, 864 (5th Cir. 2004).

19 The court did not rule on any other issues raised by the parties on summary 

judgment, and we likewise do not opine on them.

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the craft sale at the Rodeo or that the prison officials impinged such a right. 

By participating with their permission, Turner was entitled to speak with the 

public during the event and was expected to do so. Turner insists that, once 

he was allowed to speak with the public, the prison officials could not limit his

speech without justification.

The district court determined that the content of Turner’s speech was a 

grievance and, because he spoke in a prison and as a prisoner, the speech was

unprotected if expressed outside the grievance procedures. This classification

of Turner’s speech, however, is not supported by the record. Turner’s speech 

was not a grievance because it had nothing to do with his status as a prisoner. 

Turner made his remarks in an effort to explain that, because of the taxes, he 

could not reduce the price of his crafts. Significantly, Turner was addressing 

the public, not a prison official or another prisoner.20 As far as we can tell,

none of the justifications for restricting a prisoner’s speech to a grievance 

procedure is present. There is nothing to suggest that Turner’s remarks to the 

public had the potential for inciting violence, disturbing order in the prison, or 

creating security concerns. He was there because prison officials had 

permitted him to engage in a public event attended by large numbers of the 

public on prison grounds. Under these circumstances, Turner’s speech, was 

not in the form of a grievance, and may not have been inconsistent with his 

status as a prisoner. Given that Turner’s speech was not a grievance, LSP 

officials could not restrict his speech based on the LSP grievance procedure.

Whether there is any other justification for sanctioning Turner’s speech, 

we cannot say; the law, as well as the surrounding circumstances, requires 

more careful exegesis. Undoubtedly, “a prison inmate retains those First 

 

20 Turner asserts he did not know he was speaking to the spouse of an LSP official.

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Amendment rights that are not inconsistent with his status as a prisoner or 

with the legitimate penological objectives of the corrections system.”21

However, “when a prison regulation [or action] impinges on inmates’

constitutional rights, the regulation [or action] is valid if it is reasonably 

related to legitimate penological interests.”22 Because the district court 

incorrectly labeled Turner’s speech a grievance, we remand for the district 

court to consider whether his speech was otherwise consistent with “legitimate 

penological interests.” The Supreme Court in Turner identified a number of 

considerations relevant to this determination: “whether a ‘valid, rational 

connection’ exists between the regulation and the legitimate interest put forth 

to justify it; whether ‘alternative means of exercising the right . . . remain open 

to prison inmates’; ‘the impact accommodation of the asserted constitutional 

right’ will have on prison officials and inmates; and the availability of ‘obvious, 

easy alternatives’ to the challenged regulation.”23 The district court should 

consult these factors and determine whether the defendants could have limited 

Turner’s speech. 

This determination will inform whether Turner’s speech was 

protected—or not—under the First Amendment. We remand for the district 

court to make this determination. To facilitate the inquiry, the court should 

appoint counsel for Turner. The court should also bear in mind that Cain 

offered in his summary judgment motion only a general justification for his 

 

21 Pell v. Procunier, 417 U.S. 817, 822 (1974); see also Freeman, 369 F.3d at 863.

22 Turner v. Safley, 482 U.S. 78, 89 (1987).

23 Watkins v. Kaspar, 599 F.3d 791, 796–97 (7th Cir. 2010) (alteration in original) 

(quoting Turner, 482 U.S. at 89–90).

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contention that the speech was unprotected. We opine no further on the facts

and issues that the court will confront on remand.

CONCLUSION

For the foregoing reasons, the district court’s judgment dismissing

Vannoy is AFFIRMED; the judgments dismissing DuPont and granting 

summary judgment to Warden Cain are REVERSED and REMANDED for 

further proceedings consistent herewith, including appointment of counsel for 

Turner.

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WIENER, Circuit Judge, concurring:

I concur entirely in the majority’s holding that Turner’s speech was not 

a “grievance” and therefore not per se unprotected merely because it might 

have been made outside the LSP’s grievance process. Yet, I would go further: 

Rather than remanding for the district court to consider whether Turner’s 

speech might be unprotected because Warden Cain had some other legitimate 

penological reason for restricting it, I would hold that it is protected because 

there is no evidence of such a reason—nor could there be. 

To begin with, the first element of a prisoner’s retaliation claim, viz., 

whether prison officials may have restricted a prisoner’s speech, rendering it 

“unprotected,” is separate and distinct from the second, third, and fourth

elements, viz., whether prison officials intended to restrict that speech, 

whether the speech was restricted through some regulation or action, and 

whether the prison officials caused the regulation or action restricting the 

speech. Common sense dictates that we must not read the second, third, and 

fourth elements into the first. Just because Warden Cain would not have been

permitted to restrict Turner’s speech, rendering it protected, does not mean 

that he intended to restrict it, that it was restricted, or that he caused it to be 

restricted. Likewise, the existence of genuine issues of material fact as to the 

second, third, and fourth elements do not necessarily preclude resolution of the 

first. 

This “inquiry into the protected status of speech is one of law, not fact.”1

Regardless of what actually happened, Turner’s speech is either “protected” or 

it is not. On appeal, “we are compelled to examine for ourselves the statements 

 

1 Connick v. Myers, 461 U.S. 138, 148 n.7 (1983); see Stewart v. Parish of Jefferson, 

951 F.2d 681, 683 (5th Cir. 1992).

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in issue and the circumstances under which they were made to see . . . whether 

they are . . . protect[ed].”2

To begin with, speech is “protected” when the government is not 

permitted to restrict it.3 Even “imprisonment does not automatically deprive a 

prisoner of some important constitutional protections, including those of the 

First Amendment.”4 Instead, a prisoner’s speech—like all speech—is presumed 

to be protected,5 irrespective of its content.6 For “a prison regulation [or 

action]” to render such speech unprotected, Turner v. Safley requires that it be 

 

2 Pennekamp v. Fla., 328 U.S. 331, 335 (1946); see Connick, 461 U.S. at 150 n.10; 

Rankin v. McPherson, 483 U.S. 378, 384 (1987); see also Bose Corp. v. Consumers Union of 

U.S., Inc., 466 U.S. 485, 499 (1984) (“[I]n cases raising First Amendment issues we have 

repeatedly held that an appellate court has an obligation to ‘make an independent 

examination of the whole record’ in order to make sure that ‘the judgment does not 

constitute a forbidden intrusion on the field of free expression.’”) (quoting New York Times 

Co. v. Sullivan, 376 U.S. 254, 285 (1964)).

3 See U.S. CONST. amend. I (“Congress shall make no law . . . abridging the freedom 

of speech . . . .”).This includes both “fully protected” speech (for example, political in 

content) and even “proscribeable” speech (for example, obscene in content). Although 

proscribable speech is generally unprotected if the government restricts it neutrally, it may 

be protected if it restricts it nonneutrally. See R.A.V. v. City of St. Paul, Minn., 505 U.S. 

377, 383-84, 387 (1992) (“We have sometimes said that these categories of expression are 

not within the area of constitutionally protected speech or that the protection of the First 

Amendment does not extend to them. . . . What [we] mean is that these areas of speech can, 

consistently with the First Amendment, be regulated because of their constitutionally 

proscribable content (obscenity, defamation, etc.)—not that they are categories of speech 

entirely invisible to the Constitution, so that they may be made the vehicles for content 

discrimination unrelated to their distinctively proscribable content.” (citations omitted) 

(internal quotation marks omitted)).

4 Beard v. Banks, 548 U.S. 521, 528 (2006) (plurality opinion) (citing Turner v. 

Safley, 482 U.S. 78, 93 (1987)) (emphasis added).

5 See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969) 

(“Clearly, the prohibition of expression of one particular opinion, at least without evidence 

[of an interest in doing so], is not constitutionally permissible.”).

6 See Connick, 461 U.S. at 147 (“We in no sense suggest that speech on private 

matters falls into one of the narrow and well-defined classes of expression which carries so 

little social value, such as obscenity, that the State can prohibit and punish such expression 

by all persons in its jurisdiction.”).

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“reasonably related to legitimate penological interests.”7 This mandates 

balancing the prisoner’s interest in his right to speech against the prison 

officials’ interest in restricting that right. In so doing, we “must reach the most 

appropriate possible balance of the competing interests,” even when, as here, 

the “particularized balancing is difficult.”8 Turner is entitled to judgment on 

this first element of his claim because (1) there is no evidence of any interest 

that would have permitted Warden Cain to restrict Turner’s speech regarding 

the taxes and (2) even if there were, such an interest is insufficient to satisfy 

Turner when speech is restricted nonneutrally. 

I.

Although Turner has the burden of persuasion (or proof) as to each 

element of his claim on summary judgment,9 he does not necessarily have the 

burden of production. 10 The burden of persuasion, which is “[a] party’s duty to 

convince the fact-finder,”11 is distinct from the burden of production, which is 

“[a] party’s duty to introduce enough evidence on an issue to have the issue 

decided by the fact-finder, rather than decided against the party . . . [on] 

summary judgment.”12

 

7 Turner, 482 U.S. at 89.

8 Connick, 461 U.S. at 150 & n.10.

9 Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (“The burden [of persuasion] . . . is 

not on the [prison officials] to prove the validity of [the restriction on a prisoner’s speech]

but on the prisoner to disprove it.”); see Beard, 548 U.S. at 529 (plurality opinion).

10 See Bayle v. Allstate Ins. Co., 615 F.3d 350, 359 (5th Cir. 2010). The Supreme 

Court has “consistently distinguished between burden of proof, which [it has] defined as 

burden of persuasion, and an alternative concept, which [it has] referred to as the burden of 

production or the burden of going forward with the evidence.” OWCP v. Greenwich 

Collieries, 512 U.S. 267, 274 (1994).

11 Burden of Persuasion, BLACK’S LAW DICTIONARY (10th ed. 2014).

12 Burden of Production, BLACK’S LAW DICTIONARY.

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Because Turner “has the ultimate burden of persuasion,” he also has “the 

burden of producing evidence to make out a ‘prima facie’ case.”13 Stated 

differently, he must produce evidence that, if uncontested, would be enough to 

entitle him to judgment on each element.14 If he does not, he will be denied 

summary judgment. Here, that means Turner must produce evidence that, if 

uncontested, would prove that his speech was protected. He does not, however, 

have the only burden of production as to this element. 

Even though Turner has the burden of producing evidence that, if 

uncontested, would prove his speech was protected, Warden Cain has the 

burden of producing—or “put[ting] forward”—evidence of a legitimate 

penological interest in restricting Turner’s speech.15 This is Warden Cain’s 

burden of production, not Turner’s, because there is “no express or implied 

requirement in Rule 56” that Turner produce evidence negating Warden Cain’s 

case.16 Notably, “[o]ne of the principal purposes of [Rule 56] is to isolate and 

dispose of factually unsupported . . . defenses, and . . . it should be interpreted 

 

13 Bayle, 615 F.3d at 359 (emphasis added).

14 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (“[T]he inquiry under 

[Rule 56] is . . . whether the evidence presents a sufficient disagreement to require 

submission to a jury or whether it is so one-sided that one party must prevail as a matter of 

law.”).

15 Turner, 482 U.S. at 89 (“[A] legitimate governmental interest [must be] put 

forward to justify [the restriction].”); see Mayfield v. Tex. Dep’t of Criminal Justice, 529 F.3d 

599, 612 (5th Cir. 2008) (quoting Turner, 482 U.S. at 89); Victoria W. v. Larpenter, 369 F.3d 

475, 484 (5th Cir. 2004); Mays v. Springborn, 575 F.3d 643, 647 (7th Cir. 2009) (“When a 

prison impedes an inmate’s [speech] . . . it must present a legitimate penological reason for 

doing so. But . . . the prison [does not] bear[ ] the burden of proving that its penological 

reason is legitimate. Once the prison gave its explanation for denying the supplements, the 

burden shift[s] to [the prisoner] to present evidence to call that explanation into question.”

(citations omitted)).

16 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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in a way that allows it to accomplish this purpose.”17 Because this “burden of 

production at trial ultimately rests on [Warden Cain], ‘[Turner] must merely 

demonstrate an absence of evidentiary support in the record for [Warden 

Cain]’s case.’”18 This is sufficient to discharge Turner’s burden of production as

to the first element.19

I am satisfied that Turner has met his burden of production because, as 

noted, Turner’s speech is presumptively protected and he has identified an 

absence of evidence regarding a legitimate penological interest that would 

have permitted Warden Cain to restrict his speech regarding the effect of the 

taxes on his prices while allowing his speech on the prices generally. 

As Turner has “ma[de] out a prima facie case that would entitle him to a 

judgment as a matter of law if uncontroverted at trial, summary judgment will 

be granted [in favor of Turner] unless [Warden Cain] offers some competent 

evidence that . . . there is a genuine issue as to a material fact.”20 Because he 

does not also have the ultimate burden of persuasion, Warden Cain’s burden 

of production is less than Turner’s. To meet it, he must “respond[ ] adequately 

through [evidence] to the allegations in [Turner’s] complaint.”21 He must 

provide evidence that “show[s] more than a formalistic logical connection 

 

17 Id. at 323-24 (emphasis added).

18 Shields v. Twiss, 389 F.3d 142, 149 (5th Cir. 2004) (quoting Byers v. Dallas 

Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000)); see Cuadra v. Houston Indep. Sch. 

Dist., 626 F.3d 808, 812 (5th Cir. 2010). 

19 Celotex Corp., 477 U.S. at 325.

20 Grounds for Summary Judgment—Burden of Proof and Presumptions, 10A FED.

PRAC. & PROC. CIV. § 2727 (3d ed.); see Bayle, 615 F.3d at 359; Shields, 389 F.3d at 149 

(quoting FED. R. CIV. P. 56(e)).

21 Beard, 548 U.S. at 535.

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between [the limitation] and a penological objective.”22 A “bare assertion . . . is 

not enough”—Warden Cain “must adduce specific evidence to support that 

assertion.”23 As Rule 56 makes clear, if Warden Cain “fails to properly support 

an assertion of fact or fails to properly address another party’s assertion of fact 

as required by Rule 56(c), the court may . . . consider the fact undisputed for 

purposes of the motion” and may “grant summary judgment if the motion and 

supporting materials—including the facts considered undisputed—show that 

the movant is entitled to it.”24

It is undisputed that Cain has not produced evidence of any legitimate 

penological interest that would have permitted him to restrict some, but not 

all, of Turner’s speech at the Rodeo, much less an interest that would pass 

muster under Turner. Instead, Warden Cain only produced evidence of an 

interest in transferring Turner, stating: “[Turner’s] allegations that he 

informed potential customers of tax fees for each hobby craft item sold at the 

prison rodeo is not the [p]enological reason that he was transferred from LSP. 

[Turner] was transferred for status reduction, not for engaging in any speech.”

This might be evidence that contravenes the last three elements of Turner’s 

 

22 Id.; Rudolph v. Locke, 594 F.2d 1076, 1077 (5th Cir. 1979); Canady v. Thaler, 61 F. 

App’x 917 (5th Cir. 2003) (unpublished) (“There is no competent summary judgment 

evidence establishing that the [restriction] . . . is reasonably related to a legitimate 

penological purpose. Therefore, on the face of the record [the prisoner] has alleged a 

constitutional violation.” (citations omitted)); Storseth v. Spellman, 654 F.2d 1349, 1355 

(9th Cir. 1981) (“We agree with those courts that require specific evidence or at least an 

explanation of the purpose of the policy to justify a restriction on First Amendment rights.” 

(citations omitted)).

23 Rudolph, 594 F.2d at 1077.

24 FED. R. CIV. P. 56(e); see Stauffer v. Gearhart, 741 F.3d 574, 581 (5th Cir. 2014) (“If 

a motion for summary judgment is properly supported, the opposing party may not rely 

merely on allegations or denials in its own pleadings, but must, in its response, set out 

specific facts showing a genuine factual dispute for trial.”).

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retaliation claim, viz., that Cain did not intend to restrict Turner’s speech by 

transferring him, that the transfer did not restrict his speech, or that, even if 

did, Cain did not cause his speech to be restricted. But it is not evidence that 

contravenes the first element, viz., that Cain was permitted to restrict some, 

but not all, of Turner’s speech at the Rodeo. In the absence of any justification 

by Cain, rather than producing evidence of a legitimate penological interest, 

Cain has “presented nothing but a cloud of ink.”25 Without more, this “will not 

suffice to defer [a determination]” on summary judgment.26 This is enough for 

Turner to prevail on the first element of his claim. 

II.

Even if Warden Cain had met his burden of producing evidence of an 

interest in restricting Turner’s speech, such an interest would not have 

permitted him to prohibit Turner from speaking about the taxes included in 

his prices while otherwise allowing him to speak about those prices generally. 

Turner’s speech is plainly protected from such a nonneutral limitation, 

regardless of Warden Cain’s interest. “[T]he First Amendment means that 

government has no power to restrict expression because of its message, its 

ideas, its subject matter, or its content.”27 Likewise, “[t]he government may not 

[restrict or allow speech] based on hostility—or favoritism—towards the 

underlying message expressed.”28 Such restrictions “are presumptively 

invalid.”29 Even in a nonpublic forum, a regulation or action restricting speech 

 

25 Golden Oil Co. v. Exxon Co., U. S. A., 543 F.2d 548, 551 (5th Cir. 1976).

26 Id.

27 Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (quoting Bolger v. Youngs Drug Prods. 

Corp., 463 U.S. 60, 65 (1983)). 

28 R.A.V., 505 U.S. at 386.

29 Id. at 382.

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is not reasonable if it is “an effort to suppress [the speech] merely because 

officials oppose the speaker's view.”30

Turner itself incorporates this. It states that “the governmental objective 

must be a legitimate and neutral one.”31 It explains, too, that it is “important 

to inquire whether prison regulations [or actions] restricting inmates’ First 

Amendment rights operated in a neutral fashion, without regard to the content 

of the expression.”32 “When . . . the question involves the entry of people into 

the prisons for face-to-face communication with inmates, it is obvious that 

institutional considerations, such as security and related administrative 

problems, as well as the accepted and legitimate policy objectives of the 

corrections system itself, require that some limitation be placed on such 

visitations.”33 Even so, “prison officials must be accorded latitude” in imposing 

such limitations only when “no discrimination in terms of content is involved.”34

“So long as [a] restriction operates in a neutral fashion, without regard to the 

content of the expression, it . . . does not abridge any First Amendment 

 

30 Bd. of Airport Comm’rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 

573 (1987) (quoting Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 46 (1983)); 

see Connick, 461 U.S. at 147 (“We in no sense suggest that speech on private matters falls 

into one of the narrow and well-defined classes of expression which carries so little social 

value, such as obscenity, that the State can prohibit and punish such expression by all 

persons in its jurisdiction.”).

31 Turner, 482 U.S. at 90 (emphasis added).

32 Id. (emphasis added) (citing Pell v. Procunier, 417 U.S. 817, 828 (1974) (“So long 

as this restriction operates in a neutral fashion, without regard to the content of the 

expression, it falls within the ‘appropriate rules and regulations’ to which ‘prisoners 

necessarily are subject,’ and does not abridge any First Amendment freedoms retained by 

prison inmates.” (citation omitted))).

33 Pell, 417 U.S. at 826.

34 Id. (internal quotation marks omitted) (emphasis added).

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freedoms retained by prison inmates.”35 Thus, even if Warden Cain had a 

reason for nonneutrally allowing Turner’s speech about the prices of his hobby 

craft while simultaneously prohibiting his speech about the taxes included in 

those prices, such a reason would not have allowed Warden Cain to restrict 

Turner’s speech under Turner. Turner must prevail on the first element for 

this reason as well. 

III.

Admittedly, the fact that Turner is entitled to prevail on this first 

element of his retaliation claim does not mean that he will necessarily prevail 

on the remaining elements. Warden Cain might well have produced evidence 

sufficient to create genuine issues of material fact that preclude summary 

judgment. It will be up to the finder of fact to sort all that out. But, in contrast, 

this first element presents only an issue of law. As such, we are not bound by 

what the district court did or did not do. 

Despite our obligation to engage in this inquiry—and our attendant 

obligation to review “summary judgments de novo”36—the majority skirts it 

entirely, instead remanding “for the district court to make this determination.” 

I respectfully disagree with this approach. Regardless of how unusual the facts 

may be, the law is clear. We should hold that Turner has satisfied the first 

element of his claim by proving that his speech at the Rodeo regarding the 

prices of his wares including the element of the taxes was protected. I am 

comforted by the belief that the district court will so hold on remand. 

 

35 Id. at 828 (citation and internal quotation marks omitted).

36 Shields, 389 F.3d at 149.

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